FILED

June 9, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

REGINA HARRIS, Individually ) C/A No. 01A01-9806-CV-00299

and as Parent and Next Friend ) DAVIDSON COUNTY

of RONNIE DALE NETHERTON, JR., ) Circuit No. 96C-3667

a Minor )

)

 Plaintiffs-Appellants )

 ) 

 v. )

 )

DR. ANDREW L. CHERN and ) 

BAPTIST HOSPITAL, INC. )

)

Defendants-Appellees )

IN THE COURT OF APPEALS AT NASHVILLE

APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY AT NASHVILLE,

TENNESSEE

THE HONORABLE THOMAS W. BROTHERS, JUDGE

Tricia Dennis

6400 Lee Highway, Suite 102

Chattanooga, TN 37421

Attorney for Plaintiffs-Appellants

Gayle Malone, Jr.

Kathryn J. Ladd

Trabue, Sturdivant & DeWitt

2500 Nashville City Center

511 Union Street

Nashville, TN 37219

Attorneys for Defendant-Appellee

 Baptist Hospital, Inc.

VACATED AND REMANDED

 Houston M. Goddard, Presiding Judge

CONCUR:

FRANKS, J.
1

The motion to reconsider was supported by additional affidavits.

2

O P I N I O N

This is a medical malpractice case wherein Ronnie Dale

Netherton, Jr., sustained severe brain injury incident to his

birth at Baptist Hospital, Inc. The Trial Judge granted a

partial judgment in favor of Baptist as to any negligence alleged

against it in connection with the post-natal care of Plaintiff

Ronnie Netherton, Jr. Although the Trial Judge overruled the

motion for summary judgment alleging negligence by Baptist

preceding Ronnie’s birth, the Trial Judge, when ruling on the

Plaintiffs’ motion to reconsider 1

 his order of partial summary

judgment, overruled the motion and made the partial summary

judgment final pursuant to Rule 54 of the Tennessee Rules of

Civil Procedure, resulting in this appeal.

The sole question presented is whether the Trial Judge

committed prejudicial error by overruling the Plaintiffs’ motion

to reconsider his award of partial summary judgment.

Before addressing the merits of this appeal, we

recognize that the standard of review as to the issue presented

is as set out in Rose v. H.C.A. Health Services of Tennessee,

Inc. , 947 S.W.2d 144 (Tenn.App.1996), which holds that altering

or amending a motion to reconsider a summary judgment rests in

the sound discretion of the trial court. 
3

The Trial Court denied the motion to reconsider because

the affidavits supporting the motion did not meet the

requirements of “newly discovered evidence.”

It does appear, contrary to the Trial Court’s findings,

that the Plaintiffs could not have known of certain facts which

were not a part of the hospital records until the deposition of

obstetrical nurse Christy Willis was taken. This is more fully

explained in the affidavit of counsel for the Plaintiffs: 

7 . It was not until the deposition of the

obstetrical nurse, Christy Willis, was taken on

December 2, 1997 that Plaintiffs’ attorneys learned

that Christy Willis had received this information

through her computer from the laboratory, that a

temporary written statement of the cord blood gasses

had been printed but then removed from the file when

the official lab results were reported at 11:03 pm. on

August 3, 1994. Plaintiffs’ counsel also learned in

the deposition that Willis had been aware of the baby’s

severe acidosis but had not communicated this

information to any of the nursery personnel or doctors

responsible for the care of the infant.

We are not inclined to find that the Plaintiffs must

take the depositions of all possible witnesses in resisting a

motion for summary judgment but, under the facts of this case,

were entitled to rely upon all pertinent facts relative to the

delivery and the physical condition of Ronnie being placed in the

hospital records.
4

In this regard, it would seem an anomaly to us that

Baptist could remove pertinent information which it should have

retained, and then fault the Plaintiffs for not discovering it. 

Several reported cases have addressed the propriety of

a motion for reconsideration of an order granting summary

judgment. In Schaefer v. Larsen , 688 S.W.2d 430 (Tenn.App.1984),

this Court, speaking through Judge Nearn, said that the propriety

of such a motion should not be tested by the newly-discovered

evidence rule and, in doing so, employed the following language:

[W]e are not at all satisfied that the strict

requirement of rules regarding newly discovered

evidence should be applied to the matter of summary

judgments. In matters of newly discovered evidence,

the parties have already had a trial . The parties are

entitled to one trial. The basic purpose of courts and

judges is to afford the citizenry a public forum to air

disputes. Therefore, in newly discovered evidence

circumstances, the parties have already received that

which they are basically entitled to receive and one or

the other, after a full trial, is seeking a new trial

or decision on the issues. In short, a party is

seeking a second trial. Courts should be cautious in

granting a new trial on the grounds of allegedly newly

discovered evidence. However, in the matter of the

reconsideration of the granting of a summary judgment

motion, the party is only seeking that which he is

basically entitled to--a first trial. We are of the

opinion that when a summary judgment has been granted

because the case at that point presents no facts upon

which a plaintiff can recover, but prior to that

judgment becoming final, the plaintiff is able to

produce by motion facts which are material and are in

dispute, the motion to alter or amend the judgment

should be looked upon with favor, as the purpose of the

summary judgment procedure is not to abate the trial

docket of the Trial Court, but only to weed out cases

for trial in which there is no genuine issue of 

fact. See Brookins v. The R ound Table, Inc. , (1981

Tenn.) 624 S.W.2d 547, 550. 
5

Later cases, however, cast some doubt on the continued

viability of Schaefer . In Braswell v. Carothers , 863 S.W.2d 722

(Tenn.App.1993), the plaintiffs filed a motion to rehear and

reconsider an order granting summary judgment, which was denied

by the trial court. In addressing the question and the holding

in Schaefer , the Court endorsed the newly-discovered evidence

analysis, and found that the evidence presented by an affidavit

with the motion “was, or should have been, available to counsel

prior to the hearing on the motion and cannot truly be considered

‘newly discovered evidence.’”

Another case dealing with a motion to alter or amend a

summary judgment previously granted is Marr v. Montgomery

Elevator Co. , 922 S.W.2d 526 (Tenn.App.1995). This Court cited

Schaefer , to affirm the trial court’s denial of the motion to

alter, and used the following language (at page 527):

In such motions, the moving party is required to

show that the evidence has been discovered since the

trial and it could not have been discovered prior to

trial through the exercise of due diligence. Schaefer

by Schaefer v. Larsen , 688 S.W.2d 430 (Tenn.App.1984).

We believe that Marr misstates the holding in Schaefer .

Furthermore, we are inclined to believe that the result reached

in Schaefer is the better reasoned one. We also conclude that

even if we accept the dictates of Braswell and Marr , the Trial

Court was in error in not granting the motion to reconsider. We

say this because, as above noted, the evidence which led to the
6

affidavits questioning Baptist’s post-delivery care was not

available to the Plaintiffs, nor do we believe, in 

light of the fact that a reasonable inference could be drawn,

that the information which led to the conclusions in the

affidavits filed with the motion to reconsider should have been

retained in the file by employees of Baptist and, consequently,

was not available until the deposition of Nurse Willis was taken

almost nine months after the motion for summary judgment was

granted.

Moreover, and perhaps most importantly, the Trial

Court, while addressing his actions as to the partial summary

judgments granted Baptist and the other Defendant, Dr. Andrew L. 

Chern, stated the following: “The order needs to reflect that

neither Defendant is precluded from renewing the motion for

summary judgment after further discovery...”

Although the ensuing order did not specifically so

provide, it is clear from the Trial Judge’s pronouncement that he

would entertain a second motion for summary judgment by the

Defendants seeking to overturn that portion of their summary

judgment motions that was denied. In view of the leave granted

to the Defendants to again raise the issue with the Court after

discovery depositions, it would seem the application of evenhanded justice would dictate that the Plaintiffs be granted the

same post-deposition privilege, which would be a second
7

opportunity to convince the Trial Judge that he was in error in

granting a partial judgment to either Defendant. 

For this reason we conclude the Trial Court should have

granted the motion to reconsider and considered the affidavits in

support thereof. 

Baptist, in its brief, insist that even if the

affidavits were considered, the Trial Court’s grant of partial

summary judgment was appropriate. We do note that during oral

arguments, long after the briefs were filed, counsel for Baptist

candidly conceded that had these affidavits been considered the

Trial Court should have overruled Baptist’s motion.

In defense of counsel, it may have been that she

misspoke when questioned by the Court, but, even if she did, we

agree with the answer she gave because there is a dispute of

material fact between the affidavits filed with the motion to

reconsider and those filed by Baptist.

For the foregoing reasons the judgment of the Trial

Court as to the granting of a partial summary judgment in favor

of Baptist Hospital is vacated and the cause remanded for

proceedings consistent with this opinion. Costs of appeal are

adjudged against Baptist Hospital.
8

_______________________________

Houston M. Goddard, P.J. 

CONCUR:

________________________________

Herschel P. Franks, J.

 (Not Participating) 

Don T. McMurray, J.